Citation NR: 9728471
Decision Date: 08/15/97 Archive Date: 08/26/97
DOCKET NO. 95-12 166 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office
in Buffalo, New York
THE ISSUES
1. Entitlement to service connection for residuals of an eye
infection, secondary to exposure to Agent Orange.
2. Entitlement to service connection for swelling of the
nose and face, secondary to exposure to Agent Orange.
3. Entitlement to service connection for a fungus of the
head and feet, secondary to exposure to Agent Orange.
4. Entitlement to service connection for a heart disorder,
secondary to exposure to Agent Orange.
5. Whether new and material evidence has been presented to
reopen the claim of service connection for residuals of an
eye infection on a direct basis.
6. Whether new and material evidence has been presented to
reopen the claim of service connection for swelling of the
nose and face on a direct basis.
7. Whether new and material evidence has been presented to
reopen the claim of service connection for a fungus of the
head and feet on a direct basis.
8. Whether new and material evidence has been presented to
reopen the claim of service connection for a heart disorder
on a direct basis.
REPRESENTATION
Appellant represented by: New York Division of Veterans'
Affairs
ATTORNEY FOR THE BOARD
E. Artman, Counsel
INTRODUCTION
The veteran served on active duty in the United States Air
Force from October 1969 to August 1973.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating actions taken by the Buffalo,
New York, Regional Office (RO). In May 1994, the RO informed
the veteran that it denied claims of service connection for
residuals of an eye infection, for swelling of the face and
nose, for a fungus condition and for a heart condition, on
the basis that these conditions were not found to be the
result of inservice exposure to Agent Orange. The veteran
immediately expressed his disagreement with these denials.
See 38 C.F.R. § 20.302(a) (1996). In September 1995, the RO
issued a second decision in which it denied the claims on the
secondary basis. In addition, the RO reviewed the claims on
a direct basis and, in each instance, found that no new and
material evidence had been presented to reopen a claim. The
veteran henceforth pursued his appeal of the claims on both
direct and secondary bases.
The Board reviewed the claims file in August 1996. It
remanded the issues on appeal so that additional development
could take place.
At the same time, the Board granted a claim of service
connection for tinnitus and denied a claim for an increased
rating for defective hearing. The grant of service
connection was effectuated by a September 1996 rating
decision; a noncompensable rating was assigned for tinnitus.
The veteran immediately expressed his disagreement with this
rating. The issue of an increased rating was addressed in
supplemental statements of the case, issued in October 1996
and December 1996. However, it is not clear from a statement
received from the veteran in October 1996 whether he desires
to continue the appeal of the claim for an increase.
Moreover, no argument has been received from the veteran's
representative with respect to this issue. Thus, the Board
recommends that the RO contact the veteran in order to
clarify the status of this issue.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that, during his period of active
service, he was treated for an eye infection, swelling of the
nose and face, a fungus of the head and feet, and a heart
problem. He contends that service connection should be
granted for these conditions, which may or may not have been
the result of exposure to Agent Orange but which persist
until the present day.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that well-grounded claims of
service connection for residuals of an eye infection, for
swelling of the nose and face, for a fungus of the head and
feet, and for a heart disorder as secondary to exposure to
Agent Orange have not been submitted. The Board further
finds that new and material evidence sufficient to reopen the
claims of service connection on direct bases has not been
received.
FINDINGS OF FACT
1. No medical evidence of a current eye disability has been
presented.
2. No current medical evidence of swelling of the nose and
face has been presented; this swelling alone would not form
the basis for a grant of benefits since it would not
constitute a disabling condition.
3. No medical opinion is of record which links the
demonstrated post-service skin disorders to inservice
exposure to Agent Orange.
4. No medical evidence of a current heart disability has
been presented.
5. No medical evidence pertaining to an eye disability has
been presented subsequent to the issuance of a June 1987
Board decision which denied a claim of service connection for
residuals of an eye disorder.
6. No medical evidence pertaining to swelling of the nose
and face has been presented subsequent to the issuance of a
June 1987 Board decision which denied a claim of service
connection for this condition.
7. Medical evidence pertaining to the treatment of skin
disorders that has been presented subsequent to the June 1987
Board decision does not provide a link between current
disorders and events of active service; the evidence is not
probative.
8. Recently submitted reports, which demonstrate that the
veteran has undergone specialized testing to identify heart
abnormalities since the June 1987 decision, offer findings
which are basically cumulative of record.
CONCLUSIONS OF LAW
1. A well-grounded claim of service connection for residuals
of an eye infection, secondary to exposure to Agent Orange,
has not been submitted. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 5107, 7104 (West 1991 & Supp. 1997); 38 C.F.R.
§§ 3.303, 3.307(a)(6), 3.309(e) (1996).
2. A well-grounded claim of service connection for swelling
of the nose and face, secondary to exposure to Agent Orange,
has not been submitted. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 5107, 7104 (West 1991 & Supp. 1997); 38 C.F.R.
§§ 3.303, 3.307(a)(6), 3.309(e) (1996).
3. A well-grounded claim of service connection for a fungus
of the head and feet, secondary to exposure to Agent Orange,
has not been submitted. 38 U.S.C.A. §§ 1101, 1110, 1112.
1113, 5107, 7104 (West 1991 & Supp. 1997); 38 C.F.R.
§§ 3.303, 3.307(a)(6), 3.309(e) (1996).
4. A well-grounded claim of service connection for a heart
disorder, secondary to exposure to Agent Orange, has not been
submitted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104
(West 1991 & Supp. 1997); 38 C.F.R. §§ 3.303, 3.307(a)(6),
3.309(e) (1996).
5. New and material evidence, sufficient to reopen a claim
of direct service connection for residuals of an eye
infection, has not been presented. 38 U.S.C.A. §§ 1110,
5108, 7104 (West 1991 & Supp. 1997); 38 C.F.R. § 3.303
(1996).
6. New and material evidence, sufficient to reopen a claim
of direct service connection for swelling of the nose and
face, has not been presented. 38 U.S.C.A. §§ 1110, 5108,
7104 (West 1991 & Supp. 1997); 38 C.F.R. § 3.303 (1996).
7. New and material evidence, sufficient to reopen a claim
of direct service connection for a fungus of the head and
feet, has not been presented. 38 U.S.C.A. §§ 1110, 5108,
7104 (West 1991 & Supp. 1997); 38 C.F.R. § 3.303 (1996).
8. New and material evidence, sufficient to reopen a claim
of direct service connection for a heart disorder, has not
been presented. 38 U.S.C.A. §§ 1110, 5108, 7104 (West 1991 &
Supp. 1997); 38 C.F.R. § 3.303 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Claims of Service Connection for Disability
Secondary to Exposure to Agent Orange
Under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997), the
claimant-veteran has the burden of submitting evidence that
is sufficient to justify a belief by a fair and impartial
individual that his claims are well-grounded ones. The Court
of Veterans Appeals has defined this provision as placing the
requirements on the claimant seeking service connection for a
disability of submitting the following: (1) competent
evidence of a current disability (a medical diagnosis); (2)
evidence of incurrence or aggravation of a disease or injury
in service (lay or medical evidence); and (3) evidence of a
nexus between the inservice injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498, 506 (1995).
In the case of a claim of service connection for a disability
due to exposure to Agent Orange, the veteran-claimant may
attempt to submit medical evidence of a nexus between this
exposure and the claimed disorder. Cf. Rucker v. Brown, 10
Vet.App. 67 (1997); Combee v. Brown, 34 F.3d 1039 (Fed. Cir.
1994). However, VA has determined that available scientific
research supports the finding of an etiological relationship
between herbicide exposure and limited, specified conditions.
These conditions are set forth under 38 C.F.R. § 3.309(e)
(1996). When one of these conditions is shown by medical
evidence to be present, and is shown by evidence to have
become manifest within an applicable timeframe, then the
submission of evidence of a nexus becomes unnecessary.
38 C.F.R. § 3.307(a)(6) (1996).
a. Residuals of an Eye Infection
In the present case, the veteran has failed to present
medical evidence of a chronic ongoing eye disorder or of
residual disability of an inservice eye infection. The
service medical records disclose that the veteran was treated
for a boil under the right eye in May 1973. They do not
document any residual disability. A December 3, 1985 letter
of Raymond E. Frisk, M.D., includes an account of this
history and the notation that the veteran reported that he
continued to have flare-ups of boils in the same area. It
was noted that the veteran thought these flare-ups to be
related to his inservice infection. At a February 1986 VA
examination, the veteran complained of occasional eye
swelling. The eyes were not examined at this time; however,
no eye abnormalities were found at a September 1988 VA
examination. The veteran had uncorrected vision of 20/20 at
that time.
The Board informed the veteran of his duty to submit a well-
grounded claim in its August 1996 remand action. In
response, the veteran submitted a statement in September 1996
in which he wrote that he did not have a medical opinion to
support his belief that the conditions for which he claimed
service connection were due to herbicide exposure. He added
that, despite this lack of evidence, he felt the medical
evidence of record showed continuity of treatment and that he
should be granted service connection on this basis.
The Board counters by noting that no eye disorder is listed
under 38 C.F.R. § 3.309(e); hence, medical evidence of nexus
would be required to establish the veteran's claim. The
veteran has failed to submit this evidence at the present
time and in the past. Moreover, he has never submitted a
post-service diagnosis of an eye disorder. His complaints of
a disorder, whether noted by VA personnel or a private
physician do not constitute a diagnosis. Therefore, his
claim for secondary service connection must be denied on the
basis that he has failed to meet two of the criteria for
submitting a well-grounded claim.
b. Swelling of the Nose and Face
It is not clear how this disorder is to be differentiated
from the claimed eye disorder. In service, the only
documented swelling of the face occurred when the veteran had
the boil below his eye. However, the veteran complained of
swelling of the face at a June 1985 VA examination. A
diagnosis of possible photosensitivity to the sun was
provided, based on the veteran's history of blistering of the
face after sun exposure. Dr. Frisk remarked in his letter
that the claimed eye infection sounded like typical
cellulitis. No other medical evidence of record appears to
address the complaint of swelling of the nose and face. As
indicated hereinabove, the veteran has asserted that this is
a continuing problem and attributes it to exposure to Agent
Orange.
There is no diagnosis of swelling of the nose and face and,
in the event there was, it would have to be accompanied by
the identification of an underlying pathology. Swelling is a
symptom and does not, by itself, constitute a disabling
entity. Cf. 38 C.F.R. § 3.303(c). It is not listed as one
of the disorders for which service connection may be presumed
due to herbicide exposure. § 3.309(e). And, by the
veteran's concession, there is no medical evidence which
links swelling of the nose and face to herbicide exposure.
Therefore, a well-grounded claim of service connection for
swelling of the nose and face has not been presented.
c. Fungus of the Head and Feet
The service medical records show that the veteran was treated
for a rash of the left hand earlier in May 1973. He was not
found to have had a rash on his head at the time he was
treated for his boil later that month. A January 18, 1985
letter from C. Brent Olmstead, M.D. documents that he first
treated the veteran in 1981 for a fungus of the feet and the
left hand. He stated that he later treated the veteran for a
widespread rash of the torso, back, arms and flanks. This
rash was diagnosed to be tinea versicolor. As of January
1985, the veteran was found to be free of the fungal
infection of the feet and left hand. It was noted that the
veteran attributed both skin conditions to his active service
since he had had no skin problems previous to this period.
At the June 1985 VA examination, the veteran was found to
have erythematous scaling along the waist and buttock area.
He was diagnosed with mild eczema and, as noted above, a
photosensitivity to the sun based on history provided by the
veteran. Dr. Frisk noted that the veteran reported being
treated for itching of the ears and the left hand while in
Vietnam. He remarked that the description of the lesions
made it sound as though the veteran had had an ID reaction.
Dr. Frisk noted that the veteran had had a skin condition in
1974 for which he referred the veteran to Dr. Olmstead (a
dermatologist). Although he noted that he had been unable to
identify the condition, the doctor nevertheless opined that
it had been incurred in or at least aggravated by conditions
of active service. Dr. Frisk also noted that the veteran had
tinea versicolor and a chronic fungus infection of the feet.
He associated these conditions with service in Vietnam as
well, since the veteran had stated that they had begun there.
He noted that the veteran had handled chemicals as part of
his job, presumably in reference to the veteran's active
service duties.
A VA dermatological consultation took place in October 1986.
At the time, the veteran had generalized scaling of the trunk
for which an impression of tinea versicolor was given. He
was also noted to have tinea pedis. VA outpatient reports
from 1987 show that he was treated for urticaria, which was
attributed to the change in skin temperature following a
shower, and tinea pedis. The veteran was noted to complain
of itching of the ears at these times. In early 1988, it was
noted that the veteran sought treatment for a generalized
tinea versicolor.
Under the provisions of §§ 3.307(a)(6) and 3.309(e), service
connection may be presumed for chloracne, or other acneform
disease consistent with chloracne, where it is shown to have
become manifest within one year of discharge from service.
The medical findings do not show the veteran to this type of
skin disorder. Thus, he must demonstrate, through medical
opinion, that there is a link between a current skin problem
and his exposure to Agent Orange.
The Board concludes that the veteran has failed to do so.
The letter from Dr. Frisk is the only evidence which comes
close to providing a nexus. Yet, the examiner seemed
influenced more by the veteran's claims that his skin
problems had started in or shortly after service than by
belief that his tinea pedis was caused by exposure to Agent
Orange. He did not assert such a position and, lacking the
submission of research findings which would support this
position, the Board does not find that it constitutes
evidence of a nexus. It further finds that there is no
evidence which links a skin condition of the head to the
feet. The only medical finding with regard to the head was
the impression of urticaria, which was not associated with
exposure to Agent Orange.
Therefore, even though the veteran has had ongoing tinea
pedis and has complained of skin irritations of the head,
there is no evidence which links a fungal condition to
exposure to Agent Orange. The Board notes that there is also
no evidence which establishes service incurrence or
aggravation of such a condition other than the veteran's
assertions. Because of the lack of a nexus by way of a
medical opinion, a well-grounded claim has not been
presented.
d. A Heart Disorder
A review of the service medical records shows that the
veteran complained of an irregular heartbeat and shortness of
breath in May 1971. Following an examination which included
an electrocardiogram (ECG) and a chest X-ray, an impression
was given of a cardiac arrhythmia with palpitations. The
veteran complained of skipped beats and chest pain in August
1971 and in February and March of 1973. He was diagnosed
with anxiety on the last two occasions. His May 1973
separation examination report made no reference to a heart
condition.
At the June 1985 VA examination, no finding of heart disease
could be established. An ECG and a chest X-ray were
performed at this time. Both revealed no abnormalities. Dr.
Frisk reported treating the veteran for an attack of chest
pain shortly after service and attributed this attack and the
ones which had occurred in service to a hiatal hernia. The
veteran was noted to have a normal rate and systolic rhythm
with rub or gallop at a September 1988 VA examination.
Private treatment reports show that the veteran underwent a
stress test in January 1989 which yielded an abnormal
finding. This finding suggested the presence of ischemia of
the inferior wall of the left ventricle. However, a February
1989 heart catheterization procedure established that the
veteran had normal left ventricular function with normal
filling pressure, a normal mitral valve, and a normal
coronary arterial system. He was diagnosed at the time as
having hypercholesterolemia. A private September 1991 ECG
report shows that he continued to have a normal sinus rhythm.
Thus, there is no current diagnosis of a heart disorder
presented by the evidence. Hypercholesterolemia, while
troubling to the veteran, is not considered a disabling
condition for purposes of conferring benefits; it is not the
result of a disease process or an injury which may have been
incurred in or aggravated by service. See 38 U.S.C.A.
§§ 1110, 1112 (West 1991); 38 C.F.R. § 3.303(a) (1996).
Since there is no evidence of a heart disorder, it follows
that no evidence of a nexus between such a condition and
exposure to Agent Orange has been submitted. The Board
further notes that the veteran's assertions of an inservice
heart disorder are contradicted by the findings of record,
which merely reveal an arrhythmia. This also is a condition
for which service connection could not be granted.
Given these findings, a well-grounded claim of service
connection for a heart disorder has not been presented.
II. New and Material Evidence to Reopen
Claims of Service Connection
New and material evidence must be presented or secured before
the Secretary of the Department may reopen a previously-
disallowed claim and review its disposition. 38 U.S.C.A.
§ 5108 (West 1991). In June 1987, the Board denied several
claims of service connection, including those of service
connection for residuals of an eye disorder, for a heart
disability, for swelling of the face and nose, and for a
fungus condition. Thus, the veteran must present new and
material evidence in order to reopen these claims for further
consideration by the RO or the Board.
The Court of Veterans Appeals (Court) has issued several
decisions addressing what evidence constitutes “new and
material” evidence. In Evans v. Brown, 9 Vet.App. 273
(1996), the Court sought to synthesize these decisions. It
found that:
“New evidence” is that which is not
merely cumulative of other evidence of
record. [See Colvin v. Derwinski,
1 Vet.App. 171, 174 (1991).] Evidence is
“material” where it is relevant to and
probative of the issue at hand and where
there is a reasonable possibility that,
when viewed in the context of all the
evidence, both new and old, it would
change the outcome.
Evans at 283 (quoting Blackburn v. Brown, 8 Vet.App. 97, 102
(1995). It further found that, when determining whether
evidence is new and material, three questions should be
asked. The first question is whether the evidence is “new”;
that is, whether the evidence was not of record at the time
of the last final disallowance of the claim and is not merely
cumulative of other evidence that was then of record. The
next question addresses the significance of the evidence. It
should be ascertained if the evidence is probative of the
issue or issues which were the specified basis or bases for
the last final disallowance of the claim. In order to be
probative, evidence must tend to prove an issue. The third
question arises in the event that the evidence is found to be
both new and probative. In this instance, an adjudicator
should ascertain whether, in light of all of the evidence of
record, there is a reasonable possibility that the outcome of
the claim on the merits would be changed by the submission of
the new evidence. Evans at 283-284.
In June 1987, the Board denied the claims of service
connection for residuals of an eye infection, for swelling of
the face and nose and for a heart disorder, on the same
basis. It found that a review of the service medical records
and post-service medical records did not establish that the
veteran then manifested disability from these conditions. It
noted that the veteran had been treated in service for
symptoms apparently involving the heart and swelling of the
right eye (as discussed hereinabove) but that these
conditions had been acute and transitory in nature. The
Board did not find where they had resulted in chronic
residual disability. It denied the claim of service
connection for a fungus condition because the service records
did not show that it was medically evident at the time of
separation.
A review of the evidence submitted since the June 1987
decision shows that the veteran has undergone specialized
testing to identify heart abnormalities and has received
treatment for chronic skin problems. No medical evidence has
been received which pertains to an eye infection or swelling
of the nose or face. The veteran asserts that he continues
to suffer from these conditions; these assertions do not
differ from his earlier ones. Thus, new and material
evidence has not been submitted to reopen the claims of
service connection for residuals of an eye infection and for
swelling of the nose and face.
With regard to the claim of service connection for a heart
disorder, the reports pertaining to additional testing are
not “new” evidence for purposes of § 5108. They are
cumulative in that they merely demonstrate that which had
been demonstrated before -- that the veteran has no disease
process or abnormality of the heart. Thus, the additional
evidence presented is insufficient to reopen the claim of
service connection for a heart disorder.
The treatment reports pertaining to skin conditions are “new”
in the very limited sense that they show that the veteran
suffers from urticaria and suggest that it leads to
irritation of the skin of his ears. It was previously
established that the veteran had tinea pedis. But, even if
the Board were to concede that this evidence was new and not
cumulative, it is not probative. It does not prove the issue
which formed the basis for the earlier denial; it does not
provide a link between current skin disorders and events of
active service. Therefore, this evidence is not new and
material for purposes of reopen the veteran's claim of
service connection for a fungus condition of the feet and
head.
ORDER
Service connection for residuals of an eye infection,
swelling of the nose and face, fungus of the head and feet,
and a heart disorder as secondary to exposure to Agent Orange
is denied.
New and material evidence to reopen the claims of service
connection for residuals of an eye infection, for swelling of
the nose and face, for a fungus of the head and feet, and for
a heart disorder on a direct basis has not been submitted.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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